Beifuss v. Westerville Board of Education

Douglas, J.,

concurring in part and dissenting in part. I concur with the decision of the majority to award the teachers back pay. I dissent, however, with the majority’s decision not to award prejudgment interest.

R.C. 3313.17 provides that “[t]he board of education of each school district shall be a body politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with * * *.” (Emphasis added.) This statute clearly anticipates the board of education as a potential litigant. I feel it should be subject to the same rules and doctrines as any other litigant.

This becomes important when considering whether R.C. 1343.03 applies to this case. R.C. 1343.03(A) provides in pertinent part: “* * * [W]hen money becomes due and payable * * * upon all judgments, decrees, and orders of any judicial tribunal for the payment of *192 money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate of ten per cent per annum * *

It is appellee’s position that R.C. 1343.03 does not apply because, since the school board is an agency of the state, it is not bound by the provisions of a general statute without the state first giving express consent to be so bound. State, ex rel. Parrott, v. Bd. of Public Works (1881), 36 Ohio St. 409 .I do not agree with appellee’s contention.

This court has explicitly separated boards of education from the protection offered by Parrott. Therefore, the board of education should be treated like any other litigant and be subject to the general statutes. State, ex rel. Bd. of Edn. of Springfield City School Dist., v. Gibson (1935), 130 Ohio St. 318 , 4 O.O. 352 , 199 N.E. 185 , provides in the syllabus that: (1) immunity attaching to a state does not accrue to the benefit of a board of education or school district; (2) a board of education or school district clothed with the capacity to sue and be sued is thereby rendered amenable to the laws governing litigants; and (3) where a statute does not expressly exempt a subordinate political subdivision from its operation, the exemption therefrom does not exist.

This court again held in Brown v. Bd. of Edn. (1969), 20 Ohio St. 2d 68 , 49 O.O. 2d 347, 253 N.E. 2d 767 , that Gibson, supra, was still good law and that a school board is subject to the same rules and doctrines as ordinary litigants where an action arises from the type of activities authorized by R.C. 3313.17. Since this contract action arises under the board of education’s powers granted by R.C. 3313.17, the board is subject to the same rules as any other litigant, including R.C. 1343.03.

There exists a strong policy reason for awarding prejudgment interest against the school board. Without the threat of prejudgment interest, boards of education are permitted to breach contracts and yet face no penalty when they actually do so. I think it is important for this court to remove any incentive for acting in such a manner. The board of education holds a public trust and should not be allowed to abrogate this trust by treating those with whom it contracts in an unfair way and without penalty.

For the foregoing reasons, I believe the court of appeals’ decision with respect to prejudgment interest should be reversed and the judgment of the trial court reinstated. Accordingly, I must respectfully dissent from the decision of the majority not to award prejudgment interest.

Sweeney and H. Brown, JJ., concur in the foregoing opinion.